Disclosing Documents

The duty of disclosure requires the parties to a family law dispute to provide each other with all information relevant to the issues in the case.

The aim of disclosure is to help the parties to focus on genuine issues, reduce cost and encourage settlement of the case.

The Court will look at whether you and the other party have complied with the duty of disclosure when deciding the outcome of your case.

This page provides information about your responsibilities under the duty of disclosure, including:

full and frank disclosure - and what that might mean in financial and parenting cases

written undertakings that must be given to the Court, and

the consequences of failing to disclose documents.

What is the duty of disclosure?

Duty of disclosure requires all parties to a family law dispute to provide to each other party all information relevant to an issue in the case. This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with the pre-action procedure before the case starts and continues until the case is finalised.

As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control.

Chapter 13 of the Family Law Rules explains the different aspects of your duty of disclosure to the other parties and the Court.

Disclosure in parenting cases

Parties are required to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. The information you have to disclosure depends on the issues in dispute in your case. For example, the relevant documents may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs, a diary.

If you obtain an expert’s report for a parenting case, you are required to give a copy to the other parties and the independent children’s lawyer (if one has been appointed).

Property and financial cases

In property and financial cases, it is very important that both parties are totally honest and open about their financial situation. In addition to the general requirements for full and frank disclosure, there are specific rules about disclosure in financial cases.

The duty of disclosure starts with the pre-action procedures, so both parties can be informed when attempting to come to an agreement without the Court's involvement.

When you make your application for property or financial orders, you need to file a Financial Statement (Form 13). If that does not fully meet your duty of disclsoure, you also need to file an affidavit giving further particulars. If your financial circumstances change after you file the Financial Statement, you need to file an amended statement within 21 days of the change of circumstances (unless the amendments can be set out clearly in 300 words or less, in which case you can file an affidavit with details of the changes in circumstances).

Duty of disclosure rules

Chapter 13 of the Family Law Rules details a number of ways in which you may be required to comply with your duty of disclosure to the other parties and the Court. These include:

production of documents (Part 13.2)

inspection of documents (Part 13.2)

copying of documents (Part 13.2)

list of documents (Rule 13.20)

orders for disclosure (Rule 13.22), and

answers to specific questions (Part 13.3).

Undertaking as to disclosure

When your case is going to trial, you need to file an undertaking as to disclosure stating that you:

have read the Court rules about disclosure

understand your duty to the Court and other parties to provide full and frank disclosure

have complied with the duty to the best of your knowledge and ability, and

acknowledge by breaching the undertaking you can be found guilty of contempt of court

This undertaking must be filed at least 28 days before the first day you are before a judge.

If you have any legal questions about your duty to disclose documents, you should get legal advice. Remember that court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

Consequences of not disclosing documents

If you fail to disclose documents, fail to file an undertaking, or file a false undertaking, the Court can:

refuse to allow you to use that information or document as evidence in your case

stay or dismiss all or part of your case

order costs against you, or

fine you or imprison you if you are found guilty of contempt of court for not disclosing the document or for breaching your undertaking.

Filing documents

It is important to remember that the judicial officer does not automatically receive all documents that have been disclosed by the other party. If you want to rely on disclosed evidence to support your case, you need to annex it to an affidavit or tender it into evidence at trial. Read the self-represented litigants handbooks for more information about preparing for trial.

More information

Disclosure is a complex area of law. The information here is an overview only of the requirements. You must carefully read Chapter 13 of the Family Law Rules 2004 to understand your full obligations. If you are unsure about any of your obligations, you should get legal advice. A lawyer will help you understand your legal rights and responsibilities, including:

your duties and obligations about disclosure, including full and frank disclosure

the effect of the undertaking as to disclosure, and

the terms used in this brochure.

Other resources to assist with complying with the duty of disclosure are: